Our Firm represents the Government of Comoros and over 400 passengers / victims of the Gaza Freedom Flotilla. We have various legal actions in motion, both at international level and national level including the International Criminal Court, two separate legal actions in the USA and one in the UK.

Gaza Freedom Flotilla consisted of Mavi Marmara, Sfendoni, Challenger I, Eleftheri I, Eleftheri Mesogios, Gaza I, and Defne Y ships which were carrying humanitarian aid and construction materials to the people of Gaza faced the illegal attack and intervention of Israeli military forces on 31 May 2010. During the attack and in its aftermath 10 humanitarian activists lost their lives and 56 of them were heavily injured. Flotilla passengers were detained without any legal justification, injured activists were handcuffed, some of the injured were detained in prison cells for days where they were subjected to torture and mistreatment.

The Report of the UN Human Rights Council fact-finding mission found that “during the 45-50 minute operation, nine passengers were killed, more than 24 passengers had received serious injuries caused by live ammunition and a large number of other passenger had received injuries caused by plastic rounds, soft baton charges (bean bags) and other means.” The Report concluded that “several violations and offences have been committed” and that from the evidence it examined “there is clear evidence to support prosecutions of the following crimes within the terms of article 147 of the Fourth Geneva Convention: Wilful killing; Torture or inhuman treatment; [and] Wilfully causing great suffering or serious injury to body or health.” The Report also found that Israel committed violations of its obligations under international law including the “Right to life (art. 6, International Covenant on Civil and Political Rights); Torture and other cruel, inhuman or degrading treatment or punishment (art. 7, International Covenant; Convention against Torture); Right to liberty and security of the person and freedom from arbitrary arrest or detention (art. 9, International Covenant); Right of detainees to be treated with humanity and respect for the inherent dignity of the human person (art. 10, International Covenant); [and] Freedom of expression (art. 19, International Covenant).

Following a complaint filed by the Government of the Comoros (the Mavi Marmara ship was sailing under the flag of the Government of Comoros) on 14 May 2013 which requested the International Criminal Court to investigate and prosecute those responsible for the crimes committed on 31 May 2010, the Office of the Prosecutor (OTP) released a report on 6 November 2014 of its findings. The OTP concluded that “the information available indicates that there is a reasonable basis to believe that war crimes were committed on board the Mavi Marmara during the interception of the flotilla on 31 May 2010 in the context of an international armed conflict, namely: (1) willful killing pursuant to article 8(2)(a)(i); (2) wilfully causing serious injury to body and health pursuant to article 8(2)(a)(iii); and (3) committing outrages upon personal dignity pursuant to article 8(2)(b)(xxi)” of the Rome Statute. In addition, the OTP found that “if Israel’s naval blockade against Gaza was unlawful, there is consequently also a reasonable basis to believe that the IDF committed the crime of intentionally directing an attack against two civilian objects pursuant to article 8(2)(b)(ii) in relation of the forcible boarding of the Mavi Marmara and the Eleftheri Mesogios/Sofia.” The OTP decided not to open an investigation solely on the basis that these crimes (although very serious) do not satisfy the ‘gravity’ threshold necessary for a case to investigated and tried before the ICC.

‘The ICC Prosecutor and some of the Report concluded that war crimes against civilian have been committed in the international waters’

The Case before the ICC

On 14 May 2013, a referral was received by the Office of the Prosecutor from the authorities of the Union of the Comoros, a State Party to the Rome Statute, in relation to the Humanitarian Aid Flotilla incident. On 6 November 2014, the Office of the Prosecutor had announced that it was concluding the preliminary examination of the situation referred by the Union of Comoros because legal requirements of the Rome Statute to proceed with an investigation had not been met, since the potential case(s) likely to arise from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.

On 29 January 2015, our Firm as the representatives of the Government of the Union of the Comoros filed an Application for Review of the Prosecutor’s Decision not to initiate an investigation into the Situation. On 16 July 2015, Pre-Trial Chamber I found, by majority, that the Prosecutor had committed material errors in her determination of the gravity of the potential case(s) and requested the Prosecutor to reconsider her decision not to investigate.

On 6 November 2015, the Appeals Chamber of the International Criminal Court (ICC) decided by majority to dismiss, in limine and without discussing its merits, the Prosecutor’s appeal against the decision of Pre-Trial Chamber I requesting the Prosecutor to reconsider the decision not to initiate an investigation into the situation referred to her by the Union of the Comoros with regard to “the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip”.

On 6 November 2015, the Appeals Chamber of the International Criminal Court (ICC) decided by majority to dismiss, in limine and without discussing its merits, the Prosecutor’s appeal against the decision of Pre-Trial Chamber I requesting the Prosecutor to reconsider the decision not to initiate an investigation into the situation referred to her by the Union of the Comoros with regard to “the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip”.

The Appeals Chamber found that, contrary to what the Prosecutor had submitted, the decision of Pre-Trial Chamber I was not one “with respect to […] admissibility” within the meaning of article 82 (1) (a) of the Rome Statute, the ICC founding treaty. The Prosecutor’s appeal, submitted to the Appeals Chamber on the basis of article 82 (1) (a), was therefore inadmissible. As a part of its reasoning, the Appeals Chamber considered that to allow the Prosecutor’s appeal to be heard would rupture the scheme for judicial review of the Prosecutor’s decisions as explicitly set out in article 53 of the Statute, introducing an additional layer of review by the Appeals Chamber that lacks any statutory basis.

The ICC prosecutor’s decision not to initiate investigation was challenged and for the first time in the history of the ICC, the ICC Judges both at the Pre-Trial Chambers and Appeal Chambers requested the Prosecutor reconsider its decision.

In November of 2017 the ICC prosecutor has again issued a decision reinstating its previous decision not to initiate an investigation. This decision is being challenged both by the Government of Comoros and Victims of the Flotilla. On 23 February 2018 our Firm as the representatives of the Government of the Union of the Comoros filed an Application for Review of the Prosecutor’s Decision not to initiate an investigation into the Situation. An application for Review on behalf of the Victims has been filed on …. 2018.

On 16 October 2016 – Complaint for Damages. This lawsuit was brought by Ahmet Dogan individually and on behalf of Furkan Dogan, and by Hikmet Dogan individually and on behalf of Furkan Dogan against former Defence Minister, Ehud Barak. The hearing before Judge Otis Wright of the Central District of California District Court was held on 25 July in Los Angeles was dismissed and this matter is now at appeal stage.

11 January 2016 – Complaint (under the Foreign Sovereign Immunities Act) – (Plaintiffs). The Complaint was filed on 11 January with the US District Court of the District of Columbia. It is brought by four passengers of the Challenger I including David Schermerhorn (US citizen), Mary Ann Wright (US citizen); Huwaida Arraf (US citizen) and Margriet DeKnopper (Belgian citizen).

The Defendants are the State of Israel, the Ministry of Defense of Israel; the Ministry of Foreign Affairs of Israel, the Ministry of Justice of Israel and the Ministry of Public Security of Israel. As the complaint is brought against a foreign state, it is lodge under the Foreign Sovereign Immunities Act (FSIA), which gives jurisdiction in US courts to certain claims against a foreign state if certain exceptions of the Act are met. The matter has been dismissed at District Court and the subsequent appeal hearing held on 16 October 2017 in DC Washington was also dismissed.

The Case in the UK

Submission of representations to the UK War Crimes Department and other authorities were made on behalf of the 32 Passengers / Victims of the Flotilla who are British citizens.

In December 2014 a formal request to open an investigation for crimes committed against the British Victims of the Flotilla Attack at the UK War Crimes Department was lodged. The War Crimes Department are still conducting their preliminary scoping exercise as to whether or not to open an investigation.